Ranjana Natarajan contributes this guest post on a recent notable decision by the United Nations Working Group on Arbitrary Detention regarding a complaint presented by Guantanamo Bay detainee Obaidullah, who was represented before the Working Group by the University of Texas School of Law‘s National Security Clinic and Human Rights Clinic.
By Ranjana Natarajan, Clinical Professor of Law, and Director of the Civil Rights Clinic, University of Texas School of Law
In an opinion released on July 3, 2013, the UN Working Group on Arbitrary Detention (“Working Group”) concluded that the detention of an Afghan detainee in the U.S. prison at Guantanamo Bay, Cuba was arbitrary and in violation of several international human rights standards. The Working Group requested the U.S. government to take the necessary measures to remedy the situation, including the release of Mr. Obaidullah from detention and the provision of the right to compensation.
Background: The Working Group
Established in 1991, and thereafter renewed by the UN Human Rights Council, the Working Group has a mandate to investigate cases of deprivation of liberty that may be inconsistent with the standards set forth in the Universal Declaration of Human Rights and other relevant international legal instruments adopted by the States concerned. The Working Group accepts individual complaints of arbitrary detention, communicates with the concerned governments and receives responsive information, and issue opinions on the complaints. The Working Group also conducts field missions upon invitation, and presents annual reports to the Human Rights Council. Like similar special procedures created by the Human Rights Council, the Working Group is composed of independent human rights experts from around the globe, who carry out the tasks with discretion, objectivity and independence.
In aid of its mandate, the Working Group has established five categories of arbitrary detention. The Working Group may consider a situation of detention arbitrary if: 1) the detention lacks any legal basis or justification (Category I); 2) the detention results from the exercise of rights or freedoms guaranteed by certain articles of the Universal Declaration or the International Covenant on Civil and Political Rights (ICCPR), such as the freedoms of speech and religion (Category II); 3) the detention is characterized by total or partial non-observance of fair trial guarantees under the Universal Declaration or other relevant international instruments (Category III); 4) it involves prolonged administrative custody of asylum seekers, refugees, or immigrants, without administrative or judicial review or remedy (Category IV); or, 5) the detention is discriminatory, whether based on birth, national, ethnic or social origin, language, religion, or other specific categories (Category V).
Mr. Obaidullah’s Detention
In October 2012, Mr. Obaidullah filed an individual complaint before the Working Group, alleging that his ten-plus year detention at the prison in Guantanamo Bay, Cuba by the United States was arbitrary and violated fundamental human rights guarantees found in the Universal Declaration and other relevant instruments.
In his complaint, Mr. Obaidullah stated that in July 2002, United States military forces raided his home in eastern Afghanistan and took him into custody, detaining him at a prison at Bagram Air Base for three months before transferring him to the prison at Guantanamo Bay. He alleged that he was not informed of the reasons for his detention and was tortured, threatened, and coerced into making false statements while imprisoned in Afghanistan. He continued to be subjected to torture and inhumane treatment while at Guantanamo Bay. It was reported that he was detained because the U.S. authorities received a tip from an undisclosed source claiming that Mr. Obaidullah was associated with an al-Qaida cell. The authorities have never released the identity of the source to Mr. Obaidullah.
After being held without any charge or notice of the reasons for his detention, he appeared before a military administrative hearing in 2004. Mr. Obaidullah alleged that the hearing did not guarantee basic procedural protections such as the ability to cross-examine witnesses. Subsequent military reviews in the following years suffered the same procedural deficiencies. He repeatedly denied any connection with al-Qaida or the Taliban. In 2008, Mr. Obaidullah obtained counsel and filed a habeas corpus proceeding, which was delayed for almost two years.
Mr. Obaidullah contended that he had been detained for over ten years without charge or trial. The U.S. government commenced the process of military commission charges in 2008, but never completed the charging process and subsequently dismissed the preliminary charges in 2011.
The Complaint’s Allegations
Before the Working Group, Mr. Obaidullah alleged that his continued detention was arbitrary under Categories I, III and V of the Working Group’s legal categories. With regard to Category I, Mr. Obaidullah argued his administrative detention lacked domestic legal justification because it was indefinite and unduly prolonged; no longer served any security-related purpose, if it ever did; and had been instituted for the improper purpose of interrogation.
He argued that his detention was arbitrary under Category III, as lacking fundamental due process protections, because the U.S. authorities did not promptly provide him the reasons for his detention, or bring him before a judicial authority. Further, the administrative military hearings lacked adequate procedural protections, including access to counsel, the presumption of innocence, and the ability to rebut adverse evidence.
Finally, Mr. Obaidullah argued that his detention violated Category V, as it was based in discrimination on the basis of his status as a foreign national. He argued that if he had been a U.S. citizen, he would not have been subjected to the prolonged and indefinite detention and harsh conditions of imprisonment at Guantanamo Bay.
The Working Group’s Decision
In conformity with its working methods, the Working Group transmitted Mr. Obaidullah’s complaint to the U.S. government and sought a response. The U.S. government failed to respond for four months, after which time the Working Group issued its opinion.
In its discussion, the Working Group began with the basic principle that arbitrary detention violates the UN Charter and the Universal Declaration, as confirmed by the International Court of Justice. The Working Group then restated the numerous statements, reports, and recommendations of various United Nations human rights bodies, from 2002 to the present, relating to the need to end the indefinite detention of individuals in the Guantanamo Bay prison. The Working Group noted that various human rights experts have reiterated that the indefinite detention of individuals who have not been charged with any crime may constitute a “flagrant” violation of international human rights law and “in itself constitutes a form of cruel, inhuman and degrading treatment.”
The Working Group also noted that it had previously issued several opinions and reports in which it addressed the indefinite detention of individuals in Guantanamo Bay. It noted that the U.S. government has never notified any derogation from the ICCPR, as would be required before the U.S. could limit or suspend its adherence to any of the ICCPR’s provisions. The Working Group concluded that the U.S. is bound by international human rights law with regard to Mr. Obaidullah’s detention, a person under the American government’s ‘effective control,’ even though he is detained outside U.S. territory. It reiterated that the application of international humanitarian law did not exclude application of human rights law, and that the two were complementary. It further noted that customary international law on arbitrary detention applied in this case as a peremptory norm (jus cogens) of international law. The Working Group also reiterated that the struggle against international terrorism cannot be characterized as armed conflict, under contemporary international law.
The Working Group also noted that Mr. Obaidullah’s detention also contravened international humanitarian law. Since there was no concrete evidence that he had committed any belligerent activity or directly participated in hostilities, the U.S. could not show that his detention serves the purpose of preventing a combatant from returning to the battlefield to take up arms against the U.S.
With regard to Category I, the Working Group concluded that Mr. Obaidullah’s detention did not satisfy the requirement that the detention have a legal basis in domestic law that complies with international law. The domestic law used by the U.S. to justify his detention, the Authorization for Use of Military Force, does not specifically authorize arrest or detention, and it does not conform to international law because it allows prolonged and indefinite detention.
With regard to Category III, the Working Group concluded that Mr. Obaidullah’s detention did not satisfy the requirement of basic fair trial and due process protections because he was not provided the reasons for his detention, was not promptly brought before a judicial authority, and was not provided with legal counsel within a reasonable time.
With regard to Category V, the Working Group concluded that Mr. Obaidullah was subjected to prolonged and indefinite detention and deprived for due process and fair trial protections because of his status as a foreign national. It found that these were acts of discrimination that made his detention arbitrary.
Having concluded that Mr. Obaidullah’s detention was arbitrary under Categories I, III, and V, and in contravention of articles 9 and 10 of the Universal Declaration and articles 9 and 14 of the ICCPR, the Working Group stated that an adequate remedy was his release from detention. The Working Group also recommended that the United States accord him an enforceable right to compensation in accordance with Article 9(5) of the ICCPR.
The Significance of this Case
Even though various human rights experts at the United Nations and Inter-American Commission on Human Rights have strenuously objected to the continued indefinite detention of individuals in Guantanamo Bay, the U.S. government has neither closed the facility nor resolved the indefinite nature of the remaining detainees’ detention, either through release or sentencing. The Working Group’s decision may seem like nothing more than the latest reiteration of the human rights community’s strong and unified position that indefinite detention violates human rights standards. But, this decision in Mr. Obaidullah’s case is useful for clarifying and elaborating upon prior UN reports, statements, and decisions in three respects.
First, the Working Group clearly stated that the domestic law on which the U.S. relies does not comport with international law, signaling that any domestic law that purportedly justifies indefinite detention is problematic, especially one that does not even specifically authorize arrest or detention. Second, the Working Group confirmed that detention pursuant to armed conflict must satisfy both international humanitarian law and human rights law, as those regimes are complementary, and further that customary law on arbitrary detention would always apply, even in times of derogation from the ICCPR. Third, the Working Group noted that even preventive detention under international humanitarian law must be based on evidence of belligerent activity or direct participation in hostilities. These principles, taken together, fortify the protections of human rights and humanitarian law and reject the notion that international law fails to account for or cannot apply to detention schemes implemented as part of counter-terrorism efforts.
A copy of the Working Group’s written decision is posted here.